Issue 47 REGISTE NEW YORK STATE R

[Pages:182]November 24, 2021 Vol. XLIII Issue 47

DEPARTMENT OF STATE Division of Administrative Rules

REGISTER NEW YORK STATE

INSIDE THIS ISSUE:

D Telehealth Flexibilities and LGBTQ Optional Endorsement D Patient's Rights in OASAS Programs D Maintenance Reimbursement for Residential CSE Programs When a Student Has Been

Absent from the Program for More Than 15 Days

Executive Orders Financial Reports

State agencies must specify in each notice which proposes a rule the last date on which they will accept public comment. Agencies must always accept public comment: for a minimum of 60 days following publication in the Register of a Notice of Proposed Rule Making, or a Notice of Emergency Adoption and Proposed Rule Making; and for 45 days after publication of a Notice of Revised Rule Making, or a Notice of Emergency Adoption and Revised Rule Making in the Register. When a public hearing is required by statute, the hearing cannot be held until 60 days after publication of the notice, and comments must be accepted for at least 5 days after the last required hearing. When the public comment period ends on a Saturday, Sunday or legal holiday, agencies must accept comment through the close of business on the next succeeding workday.

For notices published in this issue:

? the 60-day period expires on January 23, 2022 ? the 45-day period expires on January 8, 2022 ? the 30-day period expires on December 24, 2021

KATHY HOCHUL GOVERNOR

ROSSANA ROSADO SECRETARY OF STATE

NEW YORK STATE DEPARTMENT OF STATE

For press and media inquiries call: (518) 486-9844

For State Register production, scheduling and subscription information call: (518) 474-6957

E-mail: adminrules@dos.

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E-mail: dos.dl.inetcounsel@dos.

The New York State Register is now available on-line at: dos.state-register

The New York State Register (ISSN 0197 2472) is published weekly. Subscriptions are $80 per year for first class mailing and $40 per year for periodical mailing. The New York State Register is published by the New York State Department of State, One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231-0001. Periodical postage is paid at Albany, New York and at additional mailing offices. POSTMASTER: Send address changes to NY STATE REGISTER, the Department of State, Division of Administrative Rules, One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231-0001

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R R NEW YORK STATE

EGISTE

Be a part of the rule making process!

The public is encouraged to comment on any of the proposed rules appearing in this issue. Comments must be made in writing and must be submitted to the agency that is proposing the rule. Address your comments to the agency representative whose name and address are printed in the notice of rule making. No special form is required; a handwritten letter will do. Individuals who access the online Register (dos.) may send public comment via electronic mail to those recipients who provide an e-mail address in Notices of Proposed Rule Making. This includes Proposed, Emergency Proposed, Revised Proposed and Emergency Revised Proposed rule makings.

To be considered, comments should reach the agency before expiration of the public comment period. The law provides for a minimum 60-day public comment period after publication in the Register of every Notice of Proposed Rule Making, and a 45-day public comment period for every Notice of Revised Rule Making. If a public hearing is required by statute, public comments are accepted for at least five days after the last such hearing. Agencies are also required to specify in each notice the last date on which they will accept public comment.

When a time frame calculation ends on a Saturday or Sunday, the agency accepts public comment through the following Monday; when calculation ends on a holiday, public comment will be accepted through the following workday. Agencies cannot take action to adopt until the day after expiration of the public comment period.

The Administrative Regulations Review Commission (ARRC) reviews newly proposed regulations to examine issues of compliance with legislative intent, impact on the economy, and impact on affected parties. In addition to sending comments or recommendations to the agency, please do not hesitate to transmit your views to ARRC:

Administrative Regulations Review Commission State Capitol

Albany, NY 12247 Telephone: (518) 455-5091 or 455-2731

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Each paid subscription to the New York State Register includes one weekly issue for a full year and four "Quarterly Index" issues. The Quarterly is a cumulative list of actions that shows the status of every rule making action in progress or initiated within a calendar year.

The Register costs $80 a year for a subscription mailed first class and $40 for periodical (second) class. Prepayment is required. To order, send a check or money order payable to the NYS Department of State to the following address:

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New York State Register

November 24, 2021/Volume XLIII, Issue 47

KEY:

(P) Proposal; (RP) Revised Proposal; (E) Emergency; (EP) Emergency and Proposal; (A) Adoption; (AA) Amended Adoption; (W) Withdrawal

Individuals may send public comment via electronic mail to those recipients who provided an e-mail address in Notices of Proposed Rule Making. This includes Proposed, Emergency Proposed, Revised Proposed and Emergency Revised Proposed rule makings. Choose pertinent issue of the Register and follow the procedures on the website (dos.)

Rule Making Activities Alcoholism and Substance Abuse Services, Office of 1 / Telehealth Flexibilities and LGBTQ Optional Endorsement (EP) 2 / Patient's Rights in OASAS Programs (EP) Cannabis Management, Office of 4 / Part 114 - Cannabinoid Hemp (A) Children and Family Services, Office of 7 / Maintenance Reimbursement for Residential CSE Programs When a Student Has Been Absent from the Program for More Than 15 Days (E) 9 / Implements Statutory Requirements Pursuant to the Federal Child Care and Development Block Grant Act of 2014 and the NYS 2022 Budget (A) Financial Services, Department of 12 / Minimum Standards for the Form, Content and Sale of Health Insurance, Including Standards of Full and Fair Disclosure (P) Gaming Commission, New York State 15 / Amendment of Video Lottery Gaming Regulations (A) 15 / Mobile Sports Wagering and Sports Wagering at Gaming Facilities (A) Health, Department of 18 / Medicaid Transportation Program (A) Public Service Commission 18 / Utility Processes for Customers to Consent to Sharing Data with Third Parties and How Consent Options Will be Communicated (P) 19 / Proposed Modifications to CDRP (P) 19 / Utility Processes for Customers to Consent to Sharing Data with Third Parties and How Consent Options Will be Communicated (P) State, Department of 20 / Requirements and Procedures Related to Filing, Review and Publication of Financial Reports Filed with the Department of State (A)

Hearings Scheduled for Proposed Rule Makings / 22 Action Pending Index / 23

Securities Offerings 71 / State Notices

Advertisements for Bidders/Contractors 73 / Sealed Bids

Miscellaneous Notices/Hearings 75 / Notice of Abandoned Property Received by the State Comptroller 75 / Notice of Public Hearing 76 / Public Notice

Executive Orders

83 / Executive Order No. 5.1: Continuing the Temporary Suspension and Modification of Laws Related to the Disaster Emergency in the Counties of the Bronx, Kings, New York, Richmond and Queens Due to Conditions at Rikers Island Correctional Center.

Financial Reports / 83

RULE MAKING

ACTIVITIES

Each rule making is identified by an I.D. No., which consists of 13 characters. For example, the I.D. No. AAM-01-9600001-E indicates the following:

AAM 01 96 00001

E

-the abbreviation to identify the adopting agency -the State Register issue number -the year -the Department of State number, assigned upon receipt of notice. -Emergency Rule Making--permanent action not intended (This character could also be: A for Adoption; P for Proposed Rule Making; RP for Revised Rule Making; EP for a combined Emergency and Proposed Rule Making; EA for an Emergency Rule Making that is permanent and does not expire 90 days after filing.)

Italics contained in text denote new material. Brackets indicate material to be deleted.

Office of Alcoholism and Substance Abuse Services

EMERGENCY/PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

Telehealth Flexibilities and LGBTQ Optional Endorsement

I.D. No. ASA-47-21-00001-EP Filing No. 1150 Filing Date: 2021-11-08 Effective Date: 2021-11-08

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action: Proposed Action: Amendment of Part 830 of Title 14 NYCRR. Statutory authority: Mental Hygiene Law, sections 1.03(6), 19.07(e), 19.09(b), 19.21(d), 19.97(c), 32.01, 32.02, 32.05(b), 32.07(a), 32.09(b); Education Law, art. 160; Public Health Law, section 3351(5), art. 29G; Executive Law, art. 15; 21 USC 289 Finding of necessity for emergency rule: Preservation of public health. Specific reasons underlying the finding of necessity: The proposed emergency rule amends Part 830, Designated Services, specifically allowing the telehealth flexibilities made available during the Disaster State of Emergency in NYS to become permanent and adding an optional LGBTQ endorsement. These amendments continue regulatory flexibility and alignment with the Office of Mental Health and Department of Health. Furthermore, regulatory language is modified to allow for prompt provision of services based on future flexibility in telehealth service delivery. In addition, a program endorsement is added to develop a distinction for

OASAS certified programs meeting additional criteria identified on the website for provision of LGBTQ affirming care. This rulemaking proposal was approved by the Behavioral Health Services Advisory Council consisting of affected OASAS providers of all sizes from diverse municipalities and including local governments on June 24, 2020. As a result of the first public comment period, significant changes were made to the regulation. The revised regulation was again approved by the Behavioral Health Services Advisory council in June 2021, and then published in the State register for another 45-day public comment period. No additional changes were made as a result of this second public comment period. However, the Rulemaking action expired on October 26, 2021 before OASAS could finalize the adoption package. At this time, OASAS is submitting the revised rule as a new Emergency Adoption and Proposed Rulemaking, given that the telehealth flexibilities provided in the rule are necessary to accommodate the COVID-19 health crisis. OASAS has been extending the flexibilities via a waiver consistent with the national public health emergency, however, if the national public health emergency expires these flexibilities will no longer be in effect. It is important that OASAS makes these flexibilities permanent so that there is no disruption of service to those who are seeking telehealth support.

Subject: Telehealth flexibilities and LGBTQ optional endorsement.

Purpose: To continue telehealth flexibilities allowed under the COVID-19 disaster emergency to become permanent.

Substance of emergency/proposed rule (Full text is posted at the following State website: oasas.): The Revised Rule amends Part 830:

? 830.3 Definitions. Amended to use the term "telehealth" instead of "telepractice"; removal of definitions already contained in other OASAS regulations to streamline regulatory provisions; amend definition of designation to include references to appropriate standards and guidance issued by the Office and add definition of a program endorsement.

? 830.4 Acupuncture. Clarify language to remove contradicting provisions.

? 830.5 Telehealth. Update terminology to use telehealth in place of telepractice and reference practitioners included in the public health law and corresponding regulations.

? 830.6 LGBTQ Program Endorsement. Amend to reference the appropriate documentation required for application for the endorsement including the program self-assessment tool.

This notice is intended: to serve as both a notice of emergency adoption and a notice of proposed rule making. The emergency rule will expire February 5, 2022.

Text of rule and any required statements and analyses may be obtained from: Kelly Grace, OASAS, 1450 Western Ave., Albany, NY 12203, (518) 366-7958, email: Kelly.Grace@oasas.

Data, views or arguments may be submitted to: Same as above.

Public comment will be received until: 60 days after publication of this notice.

Regulatory Impact Statement 1. Statutory Authority: (a) Section 1.03(6) of the Mental Hygiene Law defines "facility" as any

place in which services for the mentally disabled are provided. (b) Section 19.07(c) of the Mental Hygiene Law authorizes the com-

missioner to adopt standards ensuring the personal and civil rights of persons seeking and receiving addiction services, care, treatment and rehabilitation are adequately protected.

(c) Section 19.07(e) of the Mental Hygiene Law authorizes the commissioner to adopt standards including necessary rules and regulations pertaining to chemical dependence services.

(d) Section 19.09(b) of the Mental Hygiene Law authorizes the commissioner to adopt regulations necessary and proper to implement any matter under his or her jurisdiction.

(e) Section 19.21(d) of the MHL requires the Office to establish reason-

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Rule Making Activities

able performance standards for providers of services certified by the Office.

(f) Section 32.01 of the Mental Hygiene Law authorizes the commissioner to adopt any regulation reasonably necessary to implement and effectively exercise the powers and perform the duties conferred by Article 32 of the Mental Hygiene Law.

(g) Section 32.05(b) of the MHL provides that a controlled substance designated by the commissioner of the New York State Department of Health (DOH) as appropriate for such use may be used by a physician to treat a chemically dependent individual pursuant to section 32.09(b) of the MHL.

(h) Section 32.07(a) of the MHL authorizes the commissioner to adopt regulations to effectuate the provisions and purposes of Article 32 of the MHL.

(i) Section 32.09(b) of the MHL provides that the commissioner may, once a controlled substance is approved by the commissioner of DOH as appropriate for such use, authorize the use of such controlled substance in treating a chemically dependent individual.

(j) Article 160 of the Education Law provides for the licensure or certification of acupuncturists and limited practice of unlicensed persons in treatment of substance use disorder.

(k) Article 29-G of the Public Health Law relates to reimbursement for health care services delivered via "telehealth."

(l) Section 3351 of the Public Health Law authorizes the prescribing or dispensing of controlled substances for the purposes of substance use disorder treatment.

(m) Section 829 of Title 21 of the United States Code governs the law concerning internet prescribing of controlled substances.

(n) Article 15 of the Executive Law enacts the Human Rights Law prohibiting discrimination against protected classes of New Yorkers including on the basis of sexual orientation and gender identity or expression.

2. Legislative Objectives: The legislature has authorized OASAS to establish standards and regulations governing the provision of addiction treatment services and the certification of providers. These amendments continue regulatory flexibility and alignment with the Office of Mental Health and Department of Health. Furthermore, regulatory language is modified to allow for prompt provision of services based on future flexibility in telehealth service delivery. In addition, a program endorsement is added to develop a distinction for OASAS certified programs meeting additional criteria identified on the website for provision of LGBTQ affirming care. This rulemaking proposal was approved by the Behavioral Health Services Advisory Council consisting of affected OASAS providers of all sizes from diverse municipalities and including local governments on June 24, 2020. As a result of the first public comment period, significant changes were made to the regulation. The revised regulation was again approved by the Behavioral Health Services Advisory council in June 2021, and then published in the State register for another 45-day public comment period. No additional changes were made as a result of this second public comment period. However, the Rulemaking action expired on October 26, 2021 before OASAS could finalize the adoption package. At this time, OASAS is submitting the revised rule as a new Emergency Adoption and Proposed Rulemaking, given that the telehealth flexibilities provided in the rule are necessary to accommodate the COVID-19 health crisis. OASAS has been extending the flexibilities via a waiver consistent with the national public health emergency, however, if the national public health emergency expires these flexibilities will no longer be in effect. It is important that OASAS makes these flexibilities permanent so that there is no disruption of service to those who are seeking telehealth support.

3. Needs and Benefits: By conforming agency regulations for the provision of services via telehealth, it will be easier for providers of services, especially integrated providers and providers with multiple licenses, to implement telehealth across their service system by having uniform rules and regulations. Furthermore, the amendments allow for additional flexibility in a post-COVID telehealth environment.

By creating an LGBTQ program endorsement, OASAS is distinguishing certified programs that have completed additional criteria beyond that which is already required by regulation and is identified on the website for the provision of culturally competent and affirming care.

It is necessary to submit this rule as an Emergency Adoption and Proposed rulemaking so that there will be no disruption in telehealth services if the national public health emergency were to end.

4. Costs: No additional administrative costs to the regulated entities, State, local governments, or the agency are anticipated.

5. Paperwork: There is no additional paperwork beyond what is already required for telepractice designation. The program endorsement is optional for providers and therefore any additional paper work required will not create additional burdens.

6. Local Government Mandates: There are no new local government mandates.

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NYS Register/November 24, 2021

7. Duplication: This proposed rule does not duplicate, overlap, or conflict with any State or federal statute or rule.

8. Alternatives: Alternatives include not preparing the OASAS system to respond to telehealth changes in a post-COVID healthcare environment, which could have the effect of limiting access to addiction treatment services and/or missed opportunities for generating insurance reimbursement, Additionally, not creating a distinction for OASAS certified programs that meet the additional requirements for the provision of LGBTQ affirming care could have the detrimental impact of limiting access. LGBTQ identified individuals are less likely to seek healthcare services because of the fear of discrimination in these sensitive settings. Identifying competent and affirming programs increases the likelihood that someone of LGBTQ experience will seek care for their addiction.

9. Federal Standards: This regulation does not conflict with federal standards.

10. Compliance Schedule: This rulemaking will be effective as an emergency rule upon the date of Filing.

Regulatory Flexibility Analysis OASAS has determined that the rule will not impose any adverse economic impact or reporting, recordkeeping or other compliance requirements on small businesses or local governments because services delivered via telehealth are already included in the regulation and services may already be authorized by submitting the designation to the Office. Additionally, all designation's, including the new LGBTQ Program Endorsement, in the regulation are optional for providers that are already certified by the Office.

Rural Area Flexibility Analysis OASAS has determined that the rule will not impose any adverse impact on rural areas or reporting, recordkeeping or other compliance requirements on public or private entities in rural areas because services delivered via telehealth are already included in the regulation and services may already be authorized by submitting the designation to the Office. Additionally, all designation's, including the new LGBTQ Program Endorsement, in the regulation are completely optional for providers that are already certified by the Office.

Job Impact Statement OASAS is not submitting a Job Impact Statement for this rulemaking. OASAS does not anticipate a substantial adverse impact on jobs and employment opportunities because services delivered via telepractice are already included in the regulation and services may already be authorized by submitting the designation to the Office. Additionally, all designation's, including the new LGBTQ Program Endorsement, in the regulation are completely optional for providers that are already certified by the Office.

EMERGENCY/PROPOSED

RULE MAKING

NO HEARING(S) SCHEDULED

Patient's Rights in OASAS Programs

I.D. No. ASA-47-21-00002-EP

Filing No. 1154

Filing Date: 2021-11-09

Effective Date: 2021-11-09

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Proposed Action: Amendment of Part 815 of Title 14 NYCRR.

Statutory authority: Mental Hygiene Law, sections 19.07(c), (e), 19.09(b), 19.20, 19.20-a, 19.21(b), 22.03, 22.07, 32.01, 32.07(a), 32.05; Social Services Law, section 492; L. 2012, ch. 501

Finding of necessity for emergency rule: Preservation of general welfare.

Specific reasons underlying the finding of necessity: The emergency adoption and proposed rule amends Part 815 regarding patient rights. Amendments were made to Part 830 to include a Lesbian, Gay, Bisexual, Transgender, and Questioning (LGBTQ) program endorsement for programs that meet certain requirements. The amendments to Part 815 include the addition of language related to provider requirements and patients' rights sections as well as technical amendments to replace "authorized, licensed, funded, or operated" with "funded or otherwise authorized." The Behavioral Health Services Advisory Council, comprised of community based behavioral health providers and impacted consumers, unanimously approved this as a revised regulation on June 24, 2020. It went out for public comment, but the original proposed rule expired before

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